Will and statutory compulsory portion
The line of succession can be altered by means of a will or contract of inheritance. Going as far as divesting legal heirs of their compulsory portion is only possible under certain circumstances.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London – www.grprainer.com/en conclude: Anyone who does not want to settle their estate according to the rules of intestate succession can appoint heirs in a will or contract of inheritance. The legal heirs would nonetheless retain the right to their compulsory portion. The compulsory portion amounts to half of the statutory share in the estate.
There need to be serious grounds if the legal heirs are to be divested of their compulsory portion. Thus, the legal heir would have to, for example, seek to kill the testator, the spouse or another child, be guilty of intentionally mistreating the testator or committing other crimes against him, or wilfully violate his duty to support the testator.
To divest legal heirs of the compulsory portion, it is not sufficient to simply mandate this in a will or contract of inheritance; the testator must also specify a reason for this course of action. The will should therefore be very carefully worded and the grounds for revoking the share in the inheritance capable of being substantiated, as the legal heir is able to take measures against the revocation and sue for payment of the compulsory portion.
In practice, it can prove extremely difficult to strip legal heirs of their compulsory portion. One possibility for reducing the compulsory portion is to make gifts to third parties during the lifetime of the testator. However, it is important to take the legal heirs’ claims to supplement their compulsory portion into account in doing so. It is also possible for the testator to come to an agreement with the legal heirs during the former’s lifetime to renounce their compulsory portion. Of course, this is generally a quid pro quo arrangement. If it is possible to reach a settlement, care must be taken to ensure that it will bear up to legal scrutiny.
If heirs are to be effectively deprived of their compulsory portion, it is essential to obtain comprehensive legal advice from lawyers who are versed in the field of succession law.